N o . 8 8 - 4 4 3

I N THE STJPREME COURT O F THE S T A T E O F MONTANA

1 9 8 9

S T A T E O F MONTANA,

P l a i n t i f f and R e s p o n d e n t , -vs-

L E S T E R K I L L S ON T O P ,

D e f e n d a n t and A p p e l l a n t .

A P P E A L FROM: D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of C u s t e r , T h e H o n o r a b l e H. R . O b e r t , Judge p r e s i d i n g .

COTJNSEL O F RECORD:

For A p p e l l a n t :

Stephen C . M o s e s argued; M o s e s L a w F i r m , B i l l i n g s , M o n t a n a

For R e s p o n d e n t :

H o n . M a r c R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a C l a y R . S m i t h argued, S o l i c i t o r , H e l e n a , M o n t a n a K e i t h D . H a k e r , C o u n t y A t t o r n e y , M i l e s C i t y , M o n t a n a

S u b m i t t e d : O c t o b e r 1 9 , 1 9 8 9

D e c i d e d : February 1 5 , 1 9 9 0

Justice Fred J. Weber delivered the Opinion of the Court.

Lester Kills on Top was convicted by jury in the Six-

teenth Judicial District Court, Custer County, Montana, of

robbery, aggravated kidnapping and deliberate homicide. He

was sentenced to 40 years for robbery. He received the death

penalty for each of the latter two convictions. Defendant

appeals both the convictions and the sentences. We affirm.

The issues presented for our review are:

1. Whether the District Court had jurisdiction over the

crimes for which the defendant was convicted.

2. Whether the District Court committed preiudicial

error in ordering the defendant to disclose to the State any

statements taken from individuals identified by the latter as

possible witnesses.

3. Whether the District Court committed prejudicial

error by admitting into evidence various exhibits.

4. Whether the District Court committed prejudicial

error in refusing to give instructions offered by the defen-

dant relating to lesser included offenses of aggravated

kidnapping, in refusing to give defendant's instruction on

accomplice testimony corroboration, and in giving an instruc-

tion relating to flight offered by the State.

5. Whether certain factual findings in the District

Court's sentencing order were supported by the evidence.

6. Whether imposition of the death penalty is constitu-

tional under the mandatory review criteria of S 46-18-310,

MCA . 7. Whether the sentencing court committed prejudicial

error in its consideration of victim impact statements.

8. Supreme Court sentence review pursuant to

5 46-18-310, MCA.

9 . Whether t h e p r e s e n t d e a t h p e n a l t y c o n s t i t u t e s c r u e l

and u n u s u a l punishment p r o h i b i t e d by t h e Uni ted S t a t e s and

Montana C o n s t i t u t i o n s .

The e v e n t s l e a d i n g t o t h e d e a t h o f John Mar t in

Etchemendy, J r . , began i n t h e e a r l y morning h o u r s o f October

17 , 1987. A l l o f f e n s e s a r e a l l e g e d t o have o c c u r r e d on

October 17. The t r i a l i n t h i s c a s e l a s t e d two and one-hal f

weeks. The S t a t e p r e s e n t e d o v e r f i f t y w i t n e s s e s and t h e

d e f e n s e p r e s e n t e d e i g h t w i t n e s s e s . Defendant d i d n o t t e s t i -

f y . Over one hundred e x h i b i t s were e n t e r e d i n t o e v i d e n c e .

Defendant , L e s t e r K i l l s on Top, and h i s b r o t h e r , Vernon

K i l l s on Top, e n t e r e d t h e Golden West Bar i n M i l e s C i t y ,

Montana, some t i m e a f t e r midn igh t on October 1 7 , 1987.

Accompanying them w e r e Diane B u l l Coming and D o r e t t a Four

Bear . M r . Etchemendy, a l o n g w i t h a f r i e n d , a l s o went t o t h a t

b a r on t h a t F r i d a y even ing . When M r . Etchemendy was r e a d y t o

l e a v e t h e b a r , h e went o u t t o t h e p a r k i n g l o t b u t was u n a b l e

t o l o c a t e h i s v e h i c l e . A t t h a t p o i n t d e f e n d a n t , h i s b r o t h e r ,

and t h e two women o f f e r e d t o h e l p him. They a l l g o t i n a

b l a c k Dodge D u s t e r . F i r s t t h e g roup t u r n e d on t o Hiqhway 5 9

and looked a few p l a c e s f o r M r . Etchemendyls c a r . Then,

r a t h e r t h a n p roceed ing n o r t h t o M i l e s C i t y , t h e y went s o u t h

toward Ashland. Diane B u l l Coming t e s t i f i e d t h a t d e f e n d a n t

s a i d , i n h i s n a t i v e tongue of Nor the rn Cheyenne, t h a t t h e y

s h o u l d " r o l l him and s t e a l from him." S h o r t l y a f t e r t h i s

s t a t e m e n t , t h e c a r s topped s o t h e men c o u l d u r i n a t e . A l -

though M r . Etchemendy and d e f e n d a n t began a r g u i n g , M r .

Etchemendy v o l u n t a r i l y g o t back i n t h e c a r .

The c a r c o n t i n u e d t o p roceed s o u t h on Highway 59, t h e n

t u r n e d sou thwes t o n t o Highway 332 toward Ashland and t h e

Nor the rn Cheyenne r e s e r v a t i o n . Defendant began a s s a u l t i n g

M r . Etchemendy i n t h e back s e a t , b o t h b e a t i n g and choking

him, and a t t e m p t i n g t o f o r c e some p i l l s down h i s t h r o a t .

Dore t t a Four Bear t e s t i f i e d t h a t du r ing t h e a s s a u l t , Diane

Bu l l Coming took t h e w a l l e t from M r . Etchemendy's pocket and

r i f l e d through it. M r . Etchemendy was a l s o ordered t o empty

h i s pocke ts . From h i s w a l l e t , t h e group ob ta ined c r e d i t

c a r d s and two checks i s s u e d t o M r . Etchemendy from h i s em-

p loye r . While t h e c a r was t r a v e l i n g over t h e unpaved p o r t i o n

o f Highway 332, t h e d r i v e r , Diane Bu l l Coming, was t o l d t o

s t o p t h e c a r . The b r o t h e r s took M r . Etchemendy o u t of t h e

c a r and aga in a s s a u l t e d him. A f t e r making him t o t a l l y un-

d r e s s , t hey p u t him i n t h e t runk of t h e c a r . A l l t h i s oc-

cu r r ed b e f o r e t h e y e n t e r e d t h e r e s e r v a t i o n .

Near Ashland, a t about 5 a.m., t hey picked up Lavonne

Quiroz. Vernon and M s . Quiroz a t tempted t o siphon gas from

some l o c a l p ickups. They then drove t o Rabbit Town where

t hey s t o l e a t o o l box. Dore t t a Four Bear was f r i g h t e n e d of

t h e g roup ' s a c t i v i t i e s and took t h i s oppor tun i ty t o f l e e t o a

f r i e n d ' s house. The group used one of M r . Etchemendy's

c r e d i t c a r d s t o purchase gas i n Ashland. They nex t drove t o

Broadus.

A t Broadus, which i s o f f t h e r e s e r v a t i o n , defendant

cashed one o f M r . Etchemendy's paychecks f o r $ 1 7 9 . 3 1 . A f t e r

s h a r i n g t h e money wi th Vernon, defendant used some of it t o

buy a l c o h o l ( c a l l e d Ever-Clear) . A t t h e sugges t ion o f Diane

B u l l Coming, t h e group decided t o d r i v e sou th t o G i l l e t t e ,

Wyoming.

The c a r t u rned o f f on a s i d e road from Highway 5 9 and

s topped. M r . Etchemendy was l e t o u t of t h e t r u c k , b u t defen-

d a n t he ld a meta l p i p e and warned him he would be bea ten i f

he t r i e d t o f l e e . M r . Etchemendy had been b l ind fo lded b u t

Vernon took t h e b l i n d f o l d o f f a t t h i s p o i n t . Defendant t hen

became concerned t h a t M r . Etchemendy could i d e n t i f y them.

Defendant fo rced M r . Etchemendy t o d r i n k a mixture of bee r

and Ever-Clear, e v i d e n t l y i n an e f f o r t t o make him p a s s o u t .

H e was t h e n p u t back i n t h e t r u n k . T h i s o c c u r r e d o f f t h e

r e s e r v a t i o n .

The group c o n t i n u e d on t o B i d d l e , Wyoming, and a r r i v e d

t h e r e a b o u t 11 a.m. There t h e y cashed M r . Etchemendyls

second paycheck. A s t h e y c o n t i n u e d t o t r a v e l s o u t h , t h e c a r

s t o p p e d t w i c e . During one s t o p d e f e n d a n t , w h i l e a g a i n hold-

i n g t h e m e t a l p i p e , t o l d M r . Etchemendy he would d i e i f he

opened h i s e y e s . Back i n t h e c a r , d e f e n d a n t spoke t o M r .

Etchemendy th rough t h e back s e a t . M r . Etchemendy informed

d e f e n d a n t t h a t h e was m a r r i e d and had two sons .

A t G i l l e t t e , Wyoming, Vernon used M r . Etchemendyls

c r e d i t c a r d t o buy g a s . They gave M r . Etchemendy a n o t h e r

d r i n k mixed w i t h Ever-Clear . Diane B u l l Coming t e s t i f i e d

t h a t w h i l e i n t h e town o f G i l l e t t e , M r . Etchemendy began

pounding on t h e t r u n k and c a l l i n g f o r h e l p . Defendant spoke

i n h i s n a t i v e l anguage and t o l d Vernon t h e y would have t o

k i l l M r . Etchemendy. Vernon and M s . Q u i r o z remained i n a b a r

w h i l e d e f e n d a n t and Diane B u l l Coming l e f t i n t h e c a r .

Defendant and Diane B u l l Coming l e f t G i l l e t t e , t u r n e d

o n t o a s i d e r o a d , and s topped when t h e y were n o t v i s i b l e from

t h e main r o a d . M s . B u l l Coming t e s t i f i e d t h a t d e f e n d a n t took

t h e p i p e , opened t h e t r u n k , and began s t r i k i n g M r . Etchemendy

w i t h t h e p i p e , a t i r e i r o n , and f i n a l l y a r o c k . H e a l s o

k i c k e d him w i t h h i s b o o t s . She t e s t i f i e d t h a t d u r i n g t h i s

a s s a u l t t h e v i c t i m c r i e d o u t , "Oh God, no, God, no!" M s .

B u l l Coming t e s t i f i e d t h a t a f t e r t h e b e a t i n g d e f e n d a n t th rew

t h e p i p e and t i r e i r o n i n t o a f i e l d , g o t back i n t o t h e c a r

and t h e y d rove o f f . A f t e r d r i v i n g a s h o r t d i s t a n c e , de fen-

d a n t t o l d M s . B u l l Coming t o s t o p t h e c a r s o he c o u l d s h o o t

M r . Etchemendy. He t h e n a t t e m p t e d t o s h o o t t h e v i c t i m by

p l a c i n g a . 2 2 c a l i b e r s h e l l i n a v i s e g r i p and h i t t i n g t h e

s h e l l w i t h a hammer.

Defendant and M s . Ru l l Coming drove on bu t had two f l a t

t i r e s and were forced t o s t o p a t a lounge o u t s i d e of

G i l l e t t e , Wyoming. Here, M s . Bu l l Coming t e s t i f i e d t h a t she

saw defendant a t t empt ing t o c u t M r . Etchemendy's t h r o a t wi th

a smal l k n i f e . She s t a t e d t h a t she went i n t o t h e lounge and

defendant l a t e r came i n and s a i d t h e v i c t i m was dead.

About 5 p.m. Vernon and M s . Quiroz jo ined defendant and

M s . B u l l Coming. They purchased new t i r e s and then t r a v e l e d

toward Buf fa lo , Wyoming. Before l eav ing Campbell County,

Wyoming, t hey l e f t t h e body a t an abandoned community h a l l

approximately twenty m i l e s sou th of G i l l e t t e .

A rancher who l i v e d i n t h e a r e a was d r i v i n g by wi th h i s

s tepson and no t i ced t h e c a r parked by t h e community h a l l . He

t e s t i f i e d t h a t he saw t h r e e people walk over t o t h e c a r , s h u t

t h e t r u n k , g e t i n and d r i v e o f f . He t e s t i f i e d t h a t they

f a i l e d t o s h u t a g a t e s o he drove a f t e r them, b l i n k i n g h i s

l i g h t s , and f i n a l l y s topp ing sideways i n t h e road i n f r o n t of

them t o f o r c e a s t o p . Noting t h a t t h e c a r had a Montana

l i c e n s e p l a t e , he wrote down t h e l i c e n s e number. When he

t o l d t h e qroup t o r e t u r n and c l o s e t h e g a t e , he s t a t e d t h a t

t h e y agreed t o do so. LaVonne Qui roz t e s t i f i e d t h a t t hey

drove back t o t h e g a t e , whereupon she and defendant g o t o u t

of t h e c a r and c lo sed t h e g a t e .

When t h e qroup stopped i n Sher idan, Wyoming, t o g e t a

mote l , Vernon and M s . Qui roz took o f f i n t h e c a r , l e av ing

defendant and M s . Ru l l Coming behind. Defendant and M s . Bu l l

Coming went t o a s t o r e i n Sher idan and purchased new c l o t h e s

wi th one of t h e c r e d i t c a r d s . Defendant a l s o a t tempted t o

purchase new boots a t a d i f f e r e n t s t o r e , b u t t h e s a l e spe r son

could n o t accep t t h e c r e d i t ca rd . A t a t r u c k s t o p defendant

and Diane Bu l l Coming changed t h e i r c l o t h i n g and threw away

t h e c l o t h e s t hey were wearing. They then h i t chh iked t o

B i l l i n g s , Montana, u s ing f i c t i t i o u s names.

On October 19, defendant was a r r e s t e d i n B i l l i n g s a t t h e

home of Lor ra ine Four Colors . P r i o r t o being a r r e s t e d ,

defendant and M s . Bu l l Coming r e l a t e d t h e i n c i d e n t t o Lor-

r a i n e Four Colors . When defendant l ea rned t h a t h i s b r o t h e r ,

Vernon, had heen a r r e s t e d he d i r e c t e d M s . Bu l l Coming t o

d e s t r o y t h e c r e d i t c a r d s .

On October 19, t h e body of t h e v i c t i m was l o c a t e d by law

enforcement o f f i c e r s i n t h e community h a l l near G i l l e t t e ,

Wyoming. An autopsy e s t a b l i s h e d t h a t t h e cause of d e a t h was

impact trauma t o t h e back and l e f t s i d e of t h e v i c t i m ' s head.

I

Whether t h e D i s t r i c t Court had j u r i s d i c t i o n over t h e

cr imes f o r which t h e defendant was convic ted .

I n a p r e t r i a l motion t o d i s m i s s , defendant contended

t h a t Montana lacked j u r i s d i c t i o n t o p rosecu te t h e s e o f f e n s e s .

This motion was b r i e f e d and argued by t h e p a r t i e s . The

D i s t r i c t Court denied t h i s motion.

On appea l , defendant contends t h a t Montana l a c k s j u r i s -

d i c t i o n t o p rosecu te t h e s e cr imes f o r two reasons . F i r s t , he

contends t h a t j u r i s d i c t i o n t o p rosecu te t h e d e l i b e r a t e homi-

c i d e was p r o p e r l y i n t h e S t a t e of Wyoming r a t h e r t han Mon-

t a n a . Second, defendant contends t h a t f e d e r a l j u r i s d i c t i o n

i s e x c l u s i v e pu r suan t t o t h e Major Crimes Act , 18 U.S .C . $

1153, because defendant i s a fu l l -b looded , e n r o l l e d member of

t h e Northern Cheyenne T r i b e , and a l s o t h e o f f e n s e s occurred

"wi th in Ind ian Country." W e w i l l add re s s each j u r i s d i c t i o n a l

i s s u e s e p a r a t e l y .

The s t a t u t e governing S t a t e j u r i s d i c t i o n f o r a c r i m i n a l

o f f e n s e i s 5 46-2-101, MCA, which provides i n p e r t i n e n t p a r t :

(1) A person i s s u b j e c t t o p rosecu t ion i n t h i s s t a t e f o r an o f f e n s e which he commits whi le e i t h e r w i th in o r o u t s i d e t h e s t a t e by h i s own conduct o r

that of another for which he is legally accountable if:

(a) the offense is committed either wholly or partly within the state[.]

(2) An offense is committed partly within this state if either the conduct which is an element of the offense or the result which is an element occurs within the state.

Pursuant to 5 46-2-101, MCA, Montana has jurisdiction if

the offense is committed "partly within" the state. This

Court has previously construed this statute in State v. White

(Mont. 1988), 750 P.2d 440, 441, 45 St.Rep. 270, 272-73, as a

"broad assertion of jurisdiction." See also State v. Bush

(1981), 195 Mont. 475, 477-78, 636 P.2d 849, 851. Analyzing

the elements of each of the three offenses for which defen-

dant was convicted, it is clear that an element of each

offense occurred off the reservation, and was committed

"partly within" Montana.

Defendant was convicted of robbery, described in 5

45-5-401, MCA, as follows:

Robbery. (1) A person commits the offense of robbery if in the course of committing a theft he:

(a) inflicts bodily in jury upon another [ . I

Theft is defined in § 45-6-301, MCA, which provides:

Theft. (1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

(a) has the purpose of depriving the owner of the property [ .I

In the present case the testimony established that Diane

Bull Coming took Mr. Etchemendy's wallet containing credit

cards and two employment checks, while defendant inflicted

bodily injury upon Mr. Etchemendy. Undisputed testimony

demonstrated that this action occurred on the Tongue River

Road, several miles before the group entered the reservation.

While the testimony does establish that defendant did not

initially take Mr. Etchemendy's wallet from him, the uncon-

tradicted evidence establishes that the defendant exerted

unauthorized control over the property of Mr. Etchemendy when

he cashed the Etchemendy payroll check at a bar in Broadus,

Montana.

Additionally, one may be convicted of the offense of

robbery even though he did not actually take the property

himself, if he was a participant in the crime. - See State v.

Ortega (1984), 209 Mont. 285, 290-91, 679 P.2d 793, 796;

State v. Hart (Mont. 1981), 625 P.2d 21, 30, 38 St.Rep. 133,

142.

We conclude that the uncontradicted evidence established

that elements of the crime of robbery were committed within

the State of Montana and off the Indian Reservation. We

affirm the District Court's denial of the motion to dismiss

the robbery for lack of state jurisdiction.

Defendant was convicted of aggravated kidnapping pursu-

ant to 5 45-5-303(1) (c), MCA, which provides:

Aggravated kidnapping. (1) A person commits the offense of aggravated kidnapping if he knowing- ly or purposely and without lawful authority re- strains another person by either secreting or holding him in a place of isolation or by using or threatening to use physical force, with any of the following purposes:

(c) to inflict bodily injury on or to terror- ize the victim or another[.]

Again, it is clear that Mr. Etchemendy was both restrained

and beaten by defendant within Montana before the group

entered the reservation. Defendant's physical restraint and

infliction of bodily injury upon Mr. Etchemendy in the back

seat of the car began well before the group entered the

reservation. Diane Bull Coming and Doretta Four Bear both

testified that shortly thereafter and before entering the

reservation, the car stopped and defendant and his brother

assaulted the victim outside the car. Then, rather than

placing him back in the car, they ordered him to strip, and

placed him in the trunk of the car. Boxer shorts, identified

at trial as belonging to the victim, were found near Highway

332 in Custer County, approximately two miles before the

border of Rosebud County, and off the reservation. This

evidence corroborates the testimony as to where the victim

was placed in the trunk. The evidence clearly establishes

that all elements of the aggravated kidnapping were satisfied

in Montana, off the reservation. We affirm the District

Court's denial of defendant's motion to dismiss the aggravat-

ed kidnapping for lack of state jurisdiction.

Defendant was also convicted of deliherate homicide

under the "felony murder rule." Section 45-5-102(1) (h), MCA,

codifies the felony murder rule, providing:

Deliberate homicide. (1) A person commits the offense of deliberate homicide if:

(b) he attempts to commit, commits, or is legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, felony assault, aggravated as- sault, or any other forcible felony and in the course of the forcible felony or flight thereafter,

he or any person legally accountable for the crime causes the death of another human being.

Under the "felony murder rule" it is not necessary to prove

the "purposely or knowingly" element of the crime of deliber-

ate homicide. State v. Nichols (1987), 225 Mont. 438,

449-50, 734 P.2d 170, 176-77; State v. Sunday (1980), 187

Mont. 292, 307, 609 P.2d 1188, 1197. Rather, the intent to

commit the underlying felony replaces this element.

In State ex rel. Murphy v. McKinnon (1976) , 1.71 Mont.

120, 556 P.2d 906, we stated that "for the felony murder rule

to apply a causal connection between the felonious act and

the death must be present." McKinnon, 556 P.2d. at 910.

Therefore, in the present case the elements the State had to

prove were:

1) the commission of the felony 2) that a death occurred 3) a causal connection between the first felony

and the death.

As previously established, the first element of the

deliberate homicide, the commission of the underlying felony

of aggravated kidnapping, occurred in Montana. The causal

connection element was also satisfied by Montana-based con-

duct. Only the actual death occurred in Wyoming.

Defendant however, urges that Wyoming has jurisdiction

over the deliberate homicide since the decision to kill the

victim occurred in Wyoming. Defendant presents a rather

convoluted argument in support of this theory which we will

attempt to summarize. Defendant was convicted of deliberate

homicide under the felony murder rule, which does not require

that the homicide be intentional. Defendant contends, howev-

er, that in reality the homicide was intentional and there-

fore did not flow from the kidnapping. He urges that the

homicide was a distinct offense and that all elements of the

homicide occurred in Wyoming.

We reject this argument since defendant was charged with

deliberate homicide under the felony murder rule, the jury

was instructed on this offense, and the jury in fact found

him guilty as charged. Defendant's attempt to re-define the

requisite elements of the homicide in this case in order to

support this jurisdictional contention has little merit.

Additionally, defendant misconstrues the requirements of

the offense of felony murder. It appears defendant is argu-

ing he cannot be convicted of deliberate homicide under the

felony murder rule if the killing was intentional. The

felony murder statute only eliminates the necessity that the

State prove the defendant knowingly or purposely killed Mr.

Etchemendy. That statute does not suggest that if in fact

the defendant knowingly or purposely killed Mr. Etchemendy,

somehow the defendant cannot be found guilty of deliberate

homicide under the felony murder rule. The evidence in this

case clearly establishes the commission of aggravated kidnap-

ping in Montana, the death in Wyoming, and a causal connec-

tion between the aggravated kidnapping and death. We

conclude that the statutory requirements under $ 46-2-101,

MCA, were met. We affirm the District Court's denial of

defendant's motion to dismiss the deliberate homicide based

on lack of State jurisdiction.

As a second jurisdictional issue, defendant contends

that pursuant to the Major Crimes Act, federal jurisdiction

is exclusive. The Major Crimes Act, 18 U.S.C. 1153

provides:

Any Indian who commits against the person or prop- erty of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A,

incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

In the present case the critical language of this stat-

ute is "within the Indian country." An Indian committing one

of the enumerated crimes within Indian country is subject to

federal jurisdiction. The issue of State jurisdiction over

an Indian defendant is resolved factually in the present

case. As previously established, elements of the crimes of

robbery, aggravated kidnapping, and deliberate homicide were

satisfied within Montana and outside of Indian country.

Defendant seems to be claiming that if any part of an

offense occurs within Indian country, the State has no juris-

diction. However, this is not the law. The State has juris-

diction for off-reservation offenses even though a connected

offense may occur within Indian country. See, e.g., State

v. Rossbach (Minn. 1980), 288 N.W.2d 714 (state had jurisdic-

tion where Indian defendant, standing inside reservation,

fired rifle across boundary of reservation at a deputy sher-

iff standing on Minnesota land) ; State v. Wickler (S.D.

1977), 260 N.W.2d 356 (state had jurisdiction to prosecute

seven Indian defendants who fired shots from reservation onto

state land). See also 41 Am.Jr.2d Indians S 67 (1968),

stating: ". . . Indians are amenable to state laws for offenses against such laws committed by them off the reserva-

tion within the limits of the state, . . . I1 While it is true

that the victim was taken onto the reservation during the

course of the kidnapping, in fact, crossing the reservation

three times, this journey through the reservation does not

deprive the State of its jurisdiction.

Defendant relies on United States v. Torres (7th Cir.

1984), 733 F.2d 449, cert. denied, 469 U.S. 864 (1984), as

authority for his contention that federal jurisdiction is

exclusive. In Torres, federal jurisdiction attached where

the "major portion" of an ongoing conspiracy to "get rid of

the victim" occurred on the reservation, even though defen-

dants began to formulate the conspiracy, and abducted the

victim outside the reservation. Torres, 733 F.2d at 460.

The present case is factually distinguishable from Torres

since only a minor portion of the crimes occurred on the

reservation. Torres does not foreclose state jurisdiction.

We conclude that Montana had jurisdiction to prosecute

all three charged offenses as required under 5 46-2-101, MCA.

We affirm the District Court's denial of the motion to dis-

miss based on lack of jurisdiction.

I1

Whether the District Court committed prejudicial error

in ordering the defendant to disclose to the State any state-

ments taken from individuals identified by the latter as

possible witnesses.

At an omnibus hearing on March 25, 1988, the court

granted the State's request that defendant produce copies of

statements made by individuals whom the defendant intended to

call as witnesses at trial. At a pretrial hearing on May 31,

1988, defendant refused to produce certain statements taken

by his own investigator from witnesses for the State. On

June 1, 1988, the State filed a motion to compel discovery of

all witnesses defendant intended to call at trial. That

motion was granted. The court ordered production pursuant to

S 46-15-323(4), MCA, which provides:

(4) Simultaneously with the notice of defens- es submitted under subsection (3), the defendant

shall make available to the prosecutor for testing, examination, or production:

(a) the names and addresses of all persons, other than the accused, whom he will call as wit- nesses at trial, together with all statements made by them in connection with the particular case;

(b) the names and addresses of experts whom he will call at trial, together with the results of their physical examinations, scientific tests, experiments, or comparisons, including all written reports and statements made by them in connection with the particular case; and

(c) a list of all papers, documents, photo- graphs, and other tangible objects that he will use at trial.

Defendant challenges the court's order on two bases. He

first makes a constitutional challenge to this statute,

contending that the statute violates the Fifth Amendment in

that it may require him to provide proof necessary to convict

himself. He urges that statements he has taken from these

witnesses may inadvertently supply corroborating testimony

which the State is lacking. He also argues that he should

not be required to produce these statements prior to trial

since a criminal defendant is not required to produce any

witnesses and because a criminal defendant may not make the

decision of whether to call witnesses until after the State

has presented its case. Defendant also claims this statute

violates the work product rule.

The same argument regarding this statute was addressed

in State ex rel. Carkulis v. Dist. Ct. of Thirteenth Jud. D.

(Mont. 1988), 746 P.2d 604, 44 St.Rep. 1954, wherein we

upheld the validity of S 46-15-323, MCA, both against a

constitutional challenge and a claim that it violated the

work product doctrine. In Carkulis, we began by noting the

rationale stated in Williams v. Florida (1970), 399 U.S. 78,

90 S.Ct. 1893, 26 L.Ed.2d 446, as follows:

The United States Supreme Court in Williams v. Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, upheld a state statute requiring the disclosure of an alibi defense and alibi witnesses to the state prior to trial as not violating the federal right against self-incrimination. Williams is essentially grounded on the "accelerated disclo- sure" theory, that is, that at trial, the defendant would have to reveal his alibi and his witnesses relating thereto, and that accelerating the disclo- sure does not affect his constitutional rights against self-incrimination.

Carkulis, 746 P.2d at 608.

In Carkulis, after approving the Williams rationale, we

went on to apply the accelerated disclosure theory to the

disclosure required in a defendant's general defense. We

reasoned that if defendant intended to call certain witnesses

at trial, requiring pretrial disclosure of the statement did

not violate Fifth Amendment rights. We reaffirm the consti-

tutionality of 5 46-15-323(4), MCA, as here applied.

In the present case, defendant also predicates his claim

of error on the fact that he was required to produce state-

ments taken from witnesses for the State. Since the statute

and our holding in Carkulis only require production of state-

ments of witnesses which the defendant will call at trial, he

claims this was error.

Defendant's contentions fail for three reasons. First,

defendant did not request a protective order for these state-

ments, which he could have done pursuant to § 46-15-328, MCA.

Second, although defendant emphasizes that these statements

were taken from the State's witnesses, defendant listed all

State witnesses on his own list of witnesses. Thus the

statements are precisely those which are required to be

produced pursuant to S 46-15-323 (4) , MCA. As a final com-

ment, the record fails to demonstrate any manner in which

defendant. was prejudiced by the production of these

statements. The District Court record does not contain the

statements at issue, and defendant made no offer of proof as

to their alleged prejudicial nature. Defendant's argument in

regard to the witness statements is thus only academic in

nature, failing both factually and legally. We affirm the

order by the District Court which required production of the

witness statements.

I11

Whether the District Court committed prejudicial error

by admitting into evidence various exhibits.

Defendant objects to the introduction at trial of sever-

al pieces of evidence. Specifically, he objects to the

introduction of the red tool box, three items of defendant's

clothing, the pipe and photographs of it, the vice grip and

an associated residue swab, and photographs of the victim's

body where it was found in the abandoned community hall. He

bases these alleged errors on arguments of relevance and

prejudice.

An exhibit must be relevant to be entered at trial, and

a district court has broad discretion in determining rele-

vance. State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d

1117, 1119. Relevance is defined in Rule 401, M.R.Evid., as

follows:

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may in- clude evidence bearing upon the credibility of a witness or hearsay declarant.

In Oman, we discussed relevance as follows:

The test of relevance is whether an item of evi- dence will have any value, as determined by logic and experience, in proving the proposition for

which it is offered. Generally, whatever naturally and logically tends to establish a fact in issue is relevant, and that which fails to qualify in this respect is not relevant. (Citation omitted.)

Oman, 707 P.2d at 1119.

In the present case the State relied on accomplice

testimony, which must be corroborated pursuant to

5 46-16-213, MCA. In substance, this statute provides that

accomplice testimony cannot sustain a conviction unless it is

independently corroborated by other evidence which tends to

connect the defendant to the crime. Having reviewed the

evidence presented at trial, we conclude that the items of

evidence to which defendant now objects were relevant in that

each item independently corroborated the testimony of one of

the accomplices.

Defendant contends that the admission of the tool box

was irrelevant and was prejudicial as evidence of another

crime. The tool box was relevant however, as corroborating

the testimony of Doretta Four Bear regarding the sequence of

events in Ashland and Rabbit Town. Additionally, the State

was entitled to introduce the tool box even though it dis-

closed a crime other than the crimes charged, since it was a

part of the corpus delecti and was inextricably related to

the entire transaction. State v. Riley (1982), 199 Mont.

413, 425-26, 649 P.2d 1273, 1279.

Defendant objected to the introduction of a pipe and

photographs of it, claiming that there was insufficient

foundation. He claims that testimony by Officer Steve Hamil-

ton indicated that the pipe was not in the same condition at

trial as when it was found. At trial, Officer Hamilton

testified that on October 20, 1987, he and another officer

went to the location where the homicide was alleged to have

occurred. While searching the area they found a pipe which

appeared t o have blood on it. The o f f i c e r acknowledged a t

t r i a l t h a t t h e p i p e had been wiped c l e a n , y e t p o s i t i v e l y

i d e n t i f i e d it a s t h e one they had found. Diane Bu l l Coming

t e s t i f i e d t h a t defendant h i t t h e v i c t i m with a p i p e , and

LaVonne Quiroz t e s t i f i e d t h a t t h e p i p e was s i m i l a r t o t h e one

wi th which defendant t h r e a t e n e d t h e v i c t i m a t one of t h e

s t o p s . The p i p e was c e r t a i n l y r e l e v a n t ev idence , and was

i d e n t i f i e d through t r i a l tes t imony a s t h e one found by t h e

o f f i c e r s . We conclude t h e c o u r t d i d n o t e r r i n admi t t i ng t h e

p i p e and r e l a t e d photographs.

Defendant contends t h a t t h e v i c e g r i p s and a r e l a t e d

r e s i d u e swab should n o t have been admi t ted s i n c e no evidence

o f a b u l l e t d i s cha rge l i n k s t h e s e t o t h e cr ime. However, t h e

tes t imony o f Diane B u l l Coming l i n k e d t h e s e t o t h e crime.

Defendant a l s o contends t h e s e c r e a t e d t h e impress ion of

v i c i o u s n e s s and were t h e r e f o r e p r e j u d i c i a l . We s e e l i t t l e

m e r i t t o t h i s con ten t ion . Other evidence e s t a b l i s h e d t h e

v i c i o u s n e s s of t h e cr imes. The v i c e g r i p s added l i t t l e t o

t h i s .

Defendant o b j e c t s t o t h e admission of t h e c l o t h e s he was

wearing when he was a r r e s t e d . The s h i r t and jeans were new,

b u t t h e boots were n o t new, and had some blood s t a i n s on

them. These i t ems se rved t o c o r r o b o r a t e t h e tes t imony by

Diane Bu l l Coming t h a t defendant purchased new c l o t h e s i n

Wyoming and threw away t h e blood-s ta ined c l o t h e s he was

wearing. She a l s o t e s t i f i e d t h a t he a t tempted t o purchase

new boots i n Sher idan, Wyoming, b u t was unsuccess fu l .

Photographs of t h e abandoned community h a l l were admit-

t e d , two of which were c lose-ups of t h e upper body of t h e

v i c t i m , and a t h i r d photo showed t h e v i c t i m ' s upper body from

a few f e e t away. Defendant c la ims t h a t t h e s e were no t neces-

s a r y t o prove any i s s u e and were h igh ly inflammatory. The

photographs showed t h e upper body, head, and r i g h t arm of t h e

victim. The photographs were relevant to corroborate the

testimony regarding the assaults upon Mr. Etchemendy as well

as the death. The photographs corroborated testimony of

Diane Bull Coming as to where the body was left, and the

testimony of the rancher, who saw the car parked at the

community hall. Additionally, the photographs did not show

the left side of the victim's head, which was the side sus-

taining the actual blows. We have previously held that if

relevant, the inflammatory nature of a photograph of the

victim does not necessarily outweigh the probative value.

State v. Siglar (1981), 210 Mont. 248, 256, 688 P.2d 749, 753

(holding that the jury was entitled to know the nature and

extent of the injuries and no method other than the photo-

graphs would demonstrate this as graphically or as well);

Riley, 649 P.2d at 1280-81 (holding that photos were reason-

ably necessary to depict the multiplicity and extent of

injuries). We conclude the photographs were relevant and not

unduly inflammatory.

We conclude that none of defendant's evidentiary objec-

tions are meritorious.

IV

Whether the District Court committed preiudicial error

in refusing to give instructions offered by the defendant

relating to lesser included offenses of aggravated kidnap-

ping, in refusing to give defendant's instruction on accom-

plice testimony corroboration, and in giving an instruction

relating to flight offered by the State.

The court instructed the jury on the elements of aggra-

vated kidnapping. Defendant contends that he was entitled to

instructions on the lesser included offenses of unlawful

restraint and kidnapping. He urges that the jury must be

instructed on lesser included offenses if there is "some

evidence" t o suppor t t h e l e s s e r o f f e n s e , c i t i n g S t a t e v.

Hamilton (1980) , 185 Mont. 522, 605 P.2d 1 1 2 1 .

We have p rev ious ly s t a t e d t h e t e s t r ega rd ing t h e c o u r t ' s

du ty t o i n s t r u c t t h e j u ry on l e s s e r inc luded o f f e n s e s , a s

fo l lows:

I t i s a fundamental r u l e t h a t t h e defendant i s e n t i t l e d t o an i n s t r u c t i o n on a l e s s e r inc luded o f f e n s e i f t h e evidence would enab le t h e ju ry r a t i o n a l l y t o f i n d him g u i l t y of a lesser o f f e n s e and t o a c q u i t him of t h e g r e a t e r . Keeble v . United S t a t e s (1973) , 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844, 847. But t h i s Court has he ld t h a t t h e D i s t r i c t Court w i l l n o t be p u t i n e r r o r f o r r e f u s i n g t o i n s t r u c t a s t o t h e l e s s e r inc luded o f f e n s e , i f t h e evidence i s such t o show t h a t t h e defendant i s e i t h e r g u i l t y of t h e o f f e n s e charged o r e n t i t l e d t o an a c q u i t t a l . ( C i t a t i o n s omi t ted . )

S t a t e v . Kyle (Mont. 1980) , 628 P.2d 2 6 0 , 263, 37 St.Rep.

1447, 1451. See a l s o S t a t e v . Ba l lenger (1987) , 227 Mont.

308, 312, 738 P.2d 1 2 9 1 , 1 2 9 4 ( c o u r t p rope r ly r e fused i n -

s t r u c t i o n s on aggravated a s s a u l t and f e lony a s s a u l t where

evidence demonstrated c a l c u l a t e d , r e l e n t l e s s b e a t i n g s of

c h i l d , r e s u l t i n g i n c h i l d ' s dea th ) ; S t a t e v . F a r r e l l (1984) , 207 Mont. 483, 491, 676 P.2d 168, 172-73 ( c o u r t p rope r ly

r e fused i n s t r u c t i o n on misdemeanor t h e f t where evidence

showed t h a t amounts r ece ived by defendant were over $150, and

no r a t i o n a l t r i e r o f f a c t could have found defendant g u i l t y

of misdemeanor t h e f t ) ; S t a t e v. Radi (1978) , 176 Mont. 451,

464, 578 P.2d 1169, 1177 ( c o u r t p rope r ly r e fused i n s t r u c t i o n

on l e s s e r inc luded o f f e n s e of c r i m i n a l t r e s p a s s where no

evidence could l e a d a j u ry t o b e l i e v e defendant was i n bu i ld -

i ng f o r an innocent pu rpose ) .

Unlawful r e s t r a i n t i s committed when a person "knowingly

o r purposely and wi thout l awfu l a u t h o r i t y r e s t r a i n s another

so a s t o i n t e r f e r e s u b s t a n t i a l l y wi th h i s l i b e r t y . " Sec t ion

45-5-301 (1) , MCA. Kidnapping is committed when unlawful

restraint is effected "by either secreting or holding [the

victim] in a place of isolation or by using or threatening to

use physical force. " Section 45-5-302 (1) , MCA. Defendant

was charged with aggravated kidnapping, committed with a

purpose to inflict bodily injury or terrorize the victim. In

the present case, defendant was not entitled to an instruc-

tion on unlawful restraint unless there was evidence that the

victim was not restrained by secreting him or by using force.

He would have been entitled to an instruction on kidnapping

only if there was evidence that no purpose to inflict bodily

injury or terrorize the victim existed. There is no evidence

in the record that the restraint of the victim was not accom-

panied by the use of force. Neither is there evidence of a

kidnapping without a purpose of inflicting bodily injury or

terrorizing the victim. The evidence would not reasonably

support the lesser included offenses. We conclude that

defendant was not entitled to an instruction on these lesser

included offenses.

Defendant also contends that his instructions regarding

accomplice testimony should have been given, rather than the

instructions which were given. The court's Instruction No. 1 23 instructed the jury on accomplice testimony. Defendant's

1 Court's Instruction No. 23: Testimony has been presented that one or more witnesses

may be accomplices in this case. In this respect you are to be guided by the following rules of law:

1. An accomplice is one who knowingly and voluntarily, with common intent with the principal offender, unites in the commission of a crime. One may become an accomplice by being present and joining in the criminal act, by aiding and abet- ting, with criminal intent, another in its commission or in being present by advising and encouraging its commission, hut

instructions, Numbers 13, 16, 17 and 31, which he contends

should have been given, were either redundant or not relevant

to accomplice testimony. Defendant's Instruction No. 13

described mental state; Instruction No. 16 dealt with the

concept of accountability; Instruction No. 17 explained

accomplice testimony and the need for corr~boration;~and

Instruction No. 31 also dealt with accountability.

knowledge and voluntary action are essential in order to impute guilt.

2. It is a question of fact for the jury to determine from the evidence and from the law as given you by the court whether or not in this particular case one or more witnesses were or were not accomplices within the meaning of the law.

3. The testimony of an accomplice ought to be viewed with distrust.

4. A conviction cannot he had on the testimony of an accomplice unless he/she is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commis- sion of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. 2

Defendant's Instruction No. 17:

You are instructed a conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circum- stances thereof.

To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission.

The corroborating evidence must show more than a mere opportunity to commit the crime. It must raise more than a

The instructions given adequately stated the law in

regard to accomplice testimony. We conclude there was no

error regarding jury instruction on accomplice testimony.

As a final argument regarding jury instructions, defen-

dant claims that it was error for the court to instruct the

jury that flight by the defendant may show consciousness of

guilt. He contends there was no evidence that defendant ever

attempted to flee.

At trial defendant did not object to the giving of this

instruction, but only that it did not adequately define

"flight." The State correctly notes that defendant may not

change the basis of his objection on appeal. Sunday, 609

P.2d at 1195. We note, however, that defendant's objection

to this instruction on appeal is meritless since at trial a

substantial amount of evidence was presented from which the

jury could infer defendant's consciousness of guilt and the

possibility of flight. Defendant left the community hall

immediately after leaving the body, failing to close the

gate. He also proceeded to leave Campbell County, Wyoming,

suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. But corroborative evidence need not be sufficient, by itself, to support a defendant's conviction or even to make out a prima facie case against him. Corroborating evidence may be circumstantial and can come from the defendant or his witnesses.

One accomplice cannot supply the independent evidence necessary to corroborate another accomplice.

Where the alleged corroborative evidence is equally consonant with a reasonable explanation pointing toward innocent conduct on the part of defendant, then such evidence does not tend to connect him with the commission of the offense and is in the realm of speculation, not corrobora- tion. Where the claimed corroboration shows no more than an opportunity to commit a crime and simply proves suspicion, it is not sufficient corroboration to justify a conviction upon the testimony of an accomplice.

using a fictitious name while hitchhiking. Defendant pur-

chased new clothes and threw away the old blood-spattered

clothes in Sheridan, Wyoming. He attempted to destroy evi-

dence in Billings, Montana, after he learned of his brother's

arrest. The evidence provided an adequate basis for the

flight instruction. We conclude there was no error in the

giving of this instruction.

v Whether certain factual findings in the District Court's

sentencing order were supported by the evidence.

Defendant challenges the following findings of fact made

by the District Court in its sentencing order:

10. That the victim suffered a subdural hematoma, as a result of the beatings in Custer County, prior to the final beatings which led to his death.

13. That the defendant knew that the victim was married and had a family.

15. That the defendant killed JOHN MARTIN ETCHEMENDY, JR. by beating him on the head with a tire iron, rock and pipe. That the defendant also cut the victim's throat with a small knife and shot at him with a .22 shell which was held in a vice grip.

22. That two of the aggravating circumstances set forth in S46-18-303 of the Montana Code Anno- tated apply in this case:

A. The offense was Deliberate Homicide and was committed by means of torture.

B. The offense was Aggravated Kidnap- ping which resulted in the death of the victim.

Defendant contends that the above quoted findings are

not supported by substantial credible evidence. This conten-

tion has no merit whatsoever in regard to the first three

findings of fact. These three findings are accurate summa-

ries of trial testimony which the court obviously chose to

believe. Dr. Robert Deters conducted the victim's autopsy.

He stated there was a subdural hematoma on the right side of

the head caused by a series of insults to the head. He

testified that the hematoma must have occurred at least an

hour prior to the injuries to the left side of the head. The

only beatings Mr. Etchemendy received prior to being placed

in the trunk occurred in Custer County. No testimony indi-

cates that he was beaten again prior to the fatal blows. We

conclude that finding number 10 is supported by substantial

credible evidence.

As to findings number 13 and 15, Diane Bull Coming

testified that defendant knew the victim was married and had

two children. She also testified that defendant beat the

victim with a tire iron, rock, and pipe, attempted to shoot

the victim by use of a vice grip, and that defendant attempt-

ed to cut the victim's throat with a knife. Photographs and

physical evidence corroborated this testimony. We conclude

that these findings by the court are supported by substantial

credible evidence.

Defendant contends that the court's finding that the

offense of deliberate homicide was committed by means of

torture is not supported by the evidence. The fatal blows in

Wyoming were brutally accomplished by use of a pipe, a tire

iron and a rock. During this beating the victim cried out,

"Oh God, no, God, no." Additionally, we cannot rationally

separate the final beating from the entire criminal transac-

tion which demonstrated a course of conduct involving brutal-

ity and extending over several hours. Prior to delivery of

the fatal blows in Wyoming the victim was brutally assaulted

several times and confined nude in the small trunk of a car

on a cool morning for a number of hours. The evidence

established that these prior beatings in Montana were severe

enough to be potentially fatal. Dr. Deters testified that

the subdural hematoma was potentially fatal. It is not

possible to determine from the medical evidence the extent to

which the prior beatings contributed to the victim's death.

The beatings and restraint, culminating in the bludqeoning to

death of the victim, constitute substantial credible evidence

that the homicide was committed by means of torture.

The determination that these acts were torturous is

consistent with this Court's previous holdings regarding

torture in death penalty cases. See, e.g., State v. Dawson

(Mont. 1988), 761 P.2d 352, 360, 45 St.Rep. 1542, 1551-52,

cert. denied, 109 S.Ct. 3200. (1989); (evidence supported

finding that deliberate homicide was committed by means of

torture where victims were bound and gagged in each others'

presence, injected with unknown drugs, and strangled); State

v. McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, vacated,

433 U.S. 905 (1977), on remand, 177 Mont. 280, 581 P.2d 1205

(1978), cert. denied, 443 U.S. 912 (1979), on remand, 186

Mont. 481, 608 P.2d 428 (1980), cert. denied, 449 U.S. 1050

(1980) (holding that deliberate homicide was committed by

means of torture where victim was killed by a blow which laid

open her head, prior to which she was nonfatally strangled).

We conclude that there exists substantial credible evidence

to support a finding that defendant caused the victim's death

by torture. We affirm the sentencing court's finding on this

issue.

VI

Whether imposition of the death penalty is constitution-

al under the mandatory review criteria of S 46-18-310, MCA.

On appeal, defendant also challenges the constitutional-

ity of Montana's sentencing statutes which govern imposition

of the death penalty. Defendant relies on a recent Ninth

Circuit case, Adamson v. Ricketts (9th Cir. 1988), 865 F.2d

1011, petition for cert. filed, 57 U.S.L.W. 3739 (U.S. March

20, 1989) (No. 88-1553). In Adamson, the Ninth Circuit

declared unconstitutional Arizona's sentencing statutes which

govern imposition of the death penalty. In comparing Arizo-

na's statutes with those of Montana, we note that they are

similar.

Defendant did not raise this specific objection to

Montana's sentencing statutes at District Court. Although

defendant urges that he could not have raised this contention

at District Court since the Adamson case had not yet been

decided, nevertheless we decline to address this issue on

appeal. First, the Adamson decision is not binding on Mon-

tana, and we note that the decision has been appealed to the

United States Supreme Court. Second, this issue was not

raised at District Court and was neither substantively

briefed nor argued before this Court. Thus it is not appro-

priate for this Court to consider the issue. As a final

comment, we note that this Court has previously held these

statutes to be constitutional based on similar challenges in

Dawson, 761 P.2d at 360, and State v. Smith (1985), 217 Mont.

461, 490-91, 705 P.2d 1087, 1105-06, cert. denied, 474 U.S.

1073 (1986).

We conclude that the imposition of the death penalty was

constitutional under the review criteria of S 46-18-310, MCA.

VII

Whether the sentencing court committed prejudicial error

in its consideration of victim impact statements.

Although defendant does not raise this issue on appeal,

we note that in its sentencing order the District Court made

a finding of fact regarding the impact the victim's death has

had on family members. That finding of fact states:

20. the victim's family has been deprived of a son, husband and brother and the parents of the victim have been for some time and now are undergo- ing psychiatric counselling as a result of their son's death.

The United States Supreme Court, in Booth v. Maryland

(1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, held

that the jury's consideration of a victim impact statement in

that case was error, requiring resentencing. We choose to

discuss this issue in the present case.

In Booth, the State of Maryland had a statute requiring

consideration at sentencing of victim impact statements if

the victim suffered injury or death. In Booth the sentencing

was done by the jury. The defendant was convicted of the

murder of an elderly couple. Before sentencing, a lengthy

statement written by the Maryland Division of Parole and

Probation was read to the jury. It contained statements made

by several family members, including a son, daughter, and

granddaughter. The statements described the good character

and reputation of the victims, and the emotional distress

suffered by the various family members. The statement was

lengthy and poignant, containing many facts regarding the

impact on the family.

The court held that consideration of the statement

violated the Eighth Amendment in that it could influence the

jury to impose sentence in an arbitrary or capricious manner.

The court stated that a victim impact statement is irrele-

vant, that it improperly diverts the jury's attention away

from the defendant and the crime, and that it is inconsistent

with the reasoned decision-making required in a capital case.

Booth, 482 U.S. at 503-09.

In the present case the record contains no written

victim impact statements. The source of the information

about the parents' counselling is from the father's testimony

at the presentence hearing. At this hearing the father also

testified that the victim graduated from Montana College of

Mineral Science and Technology with honors, that he had a

wife and two sons, and that the wife had moved in with her

parents since her husband's death. The father stated his

opinion that this was an appropriate case for the death

penalty.

In two recent Montana cases this Court discussed whether

consideration of victim impact statements at sentencing

constituted reversible error. In Dawson, the presentence

investigation report contained a three paragraph victim

impact statement, which stated that three members of a family

had died as a result of the homicide, and that the teenage

daughter was undergoing counseling but "not doing so well."

This Court concluded that Booth was not controlling in that

sentencing was by the court, not the jury, and because the

victim impact statement was not as lengthy or poignant as the

one in Booth. Dawson, 761 P.2d at 361. See also State v. -- Keith (Mont. 1988), 754 P.2d 474, 487-88, 45 St.Rep. 556,

573-75. The present case is distinguishable from -- Booth in

that sentencing was by a judge rather than a jury, and there

was no written victim impact statement. The testimony by the

father was neither lengthy nor emotional. It was clearly not

as questionable as the information considered in Booth. We

conclude there was no reversible error in the sentencing

court's consideration of the statements.

VIII

Supreme Court sentence review pursuant to $ 46-18-310,

MCA . In reviewing a death sentence pursuant to $ 46-18-310,

MCA, this Court must determine 1) whether the sentence was

imposed under the influence of passion, prejudice, or any

other arbitrary factor; 2) whether the evidence supports the

court's findings on any mitigating and aggravating circum-

stances; and 3) whether the sentence is excessive or dispro-

portionate to the penalty imposed in similar cases,

considering both the crime and the defendant.

Appellant has not contended that the sentence was im-

posed under the influence of passion, prejudice, or any other

arbitrary factor. In Issue VII we discussed the District

Court's consideration of a victim impact statement and con-

cluded that there was no indication that defendant was preju-

diced by this. Additionally, we note that the findings of

the sentencing court are lengthy and dispassionate. From our

review of the entire record we conclude that there is no

indication that the sentence was imposed under the influence

of passion, prejudice, or any other arbitrary factor.

The second determination requires this Court to consider

whether the evidence supports the sentencing court's findings

of aggravating and mitigating circumstances. The court found

two aggravating circumstances. It determined that the of-

fense was deliberate homicide committed by means of torture,

and also that the offense was aggravated kidnapping which

resulted in the death of the victim. In Issue V we discussed

the court's finding that the deliberate homicide was commit-

ted by means of torture, concluding that substantial credible

evidence supported this finding. In Issue I we discussed the

elements of aggravated kidnapping and the elements of delib-

erate homicide under the felony murder rule. We determined

that the elements of each offense were satisfied. From this

previous determination, we conclude that the second aggravat-

ing circumstance was supported by substantial credible

evidence.

The sentencing court found that the only possible miti-

gating circumstance was that the defendant had no significant

history of prior criminal activity. It went on to conclude

that when compared to the enormity of the offenses committed

and circumstances thereof, that the mitigating circumstance

was not sufficiently substantial to call for leniency. This

same mitigating circumstance was present in Dawson, wherein

this Court affirmed the sentencing court's refusal of lenien-

cy in light of the offenses committed. Dawson, 761 P.2d at

361-62. See also Smith, 705 P.2d at 1097; State v. Coleman

(1979), 185 Mont. 299, 331-32, 605 P.2d 1000, 1019-20, cert.

denied, 446 U.S. 970 (1980). In the present case, in view of

the offenses committed, we conclude that the evidence sup-

ports the court's finding that the mitigating circumstance is

not sufficiently substantial to call for leniency.

Finally, this Court must determine whether the sentence

is excessive or disproportionate to the penalty imposed in

similar cases, considering both the crimes and the defen-

dants. Defendant has presented no argument on this, however

in accordance with our statutory duty, we have compared the

following cases appealed to this Court which involved similar

crimes for which the death penalty was or could have been

imposed: Dawson; State v. Keefe (1988), 759 P.2d 128, 45

St.Rep. 1034; Keith; Smith; State v. Fitzpatrick (1980), 186

Mont. 187, 606 P.2d 1343, cert. denied, 449 U.S. 891 (1980),

rev'd on other grounds, 869 F.2d 1217 (9th Cir. 1989), cert.

denied, 110 S.Ct. 203 (1989); Coleman; and McKenzie.

After examination of such factors as the gravity of the

offenses, the brutality with which they were committed, and

the existence of any factors meriting leniency, we hold that

the sentence in the present case is not disproportionate or

excessive to othexs imposed in similar cases. All the

above-cited cases, except Keefe, involved a death penalty

imposed for the aggravated kidnapping and subsequent homicide

of a victim. So too does this case. The factor meriting

leniency in Keefe, namely, the fact that Keefe was under the

age of 18 at the time he committed the three homicides and

thus given life rather than death sentences, does not exist

in this case. Lester Kills on Top was 25 years of age at the

time he committed the charged crimes. We conclude that the

homicide in this case, as in the other above-mentioned cases,

involved the vicious, senseless, and calculated killing of an

innocent person.

IX

Whether the present death penalty constitutes cruel and

unusual punishment prohibited by the United States and Mon-

tana Constitutions.

We here respond in part to the dissent which contends

that the death penalty in this case constitutes cruel and

unusual punishment prohibited by the Constitutions. The

Eighth Amendment to the United States Constitution and Mon-

tana Constitution Article 11, Section 22, prohibit punishment

which is cruel and unusual. The death penalty is not in all

circumstances cruel and unusual punishment, Gregg v. Georgia

(1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, but it

may not he imposed arbitrarily or capriciously, Furman v.

Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.

Using the factors cited by Justice Brennan in Furman,

the dissent concludes that the death penalty in this case

constitutes cruel and unusual punishment because the death

penalty is not acceptable to contemporary Montana society,

and because the death penalty statutes of Montana allow for

arbitrary conduct.

In Montana we have a much clearer expression of the view

of the citizens of the State than is present in many other

states. In 1972 the people of Montana decisively voted to

retain the death penalty. As stated in State v. McKenzie

(1976), 171 Mont. 278, 294, 557 P.2d 1023, 1033:

. . . The people of Montana voted for 147,023 and against 77,733, to retain the death penalty. Such a vote, so recently, negates any argument the death penalty violates contemporary standards of decency.

A statewide election less than 20 years ago, in which the

majority vote approved the death penalty by approximately

2-1, profoundly supports a conclusion that the death penalty

is acceptable to the contemporary society of Montana.

After the decision of the United States Supreme Court in

Furman, as well as the cases decided by that court in 1976,

the Montana Legislature in 1977 enacted the extensive provi-

sions in death penalty sentencing which are set forth today

in 5 s 46-18-301 through 310, MCA. A brief summary of the key

portions of those sections follows. Section 46-18-301, MCA,

provides that the judge who presided at the trial shall

conduct a separate sentencing hearing to determine the exis-

tence or nonexistence of the aggravating and mitigating

circumstances set forth in 55 46-18-303 and 304, MCA. Sec-

tion 46-18-302, MCA, provides in pertinent part as follows:

In the sentencing hearing, evidence may be present- ed as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defen- dant's character, background, history, and mental and physical conditions and any other facts in aggravation or mitigation of the penalty . . . Evidence admitted at the trial relating to such aggravating or mitigating circumstances shall be considered without reintroducing it at the sentenc- ing hearing. . . .

Section 46-18-303, MCA, enumerates specific aggravating

circumstances. The aggravating circumstances in this case

were that the offense was deliberate homicide and was commit-

ted by means of torture, and that the offense was aggravated

kidnapping which resulted in the death of the victim. Sec-

tion 46-18-304, MCA, sets forth mitigating circumstances.

The only one found by the District Court was that the defen-

dant had no significant history of prior criminal activity.

The most recent amendment to this part of the statutes in-

cluded an aggravating circumstance added by the Legislature

in 1989. While the view of the Montana Legislature does not

necessarily establish the view of the people of Montana, it

does indicate a continuing attempt on the part of the Montana

Legislature to maintain the death penalty in Montana, while

meeting the requirements set forth by the various decisions

of the United States Supreme Court. We conclude that the

death penalty is acceptable to the contemporary society of

the State of Montana.

The dissent concludes that Montana's statutes allow for

arbitrary conduct on the part of the sentencing judge. In

his special concurrence in McKenzie, Justice Haswell consid-

ered the issue of whether the Montana statutes governing

imposition of the death penalty were arbitrary. He concluded

they were not arbitrary and that they met the standards of

Furman. McKenzie, 557 P.2d at 1045-46. Since the date of

McKenzie, the Montana Legislature has added the statutory

list of mitigating factors which must be considered, and has

made other amendments as well.

The dissent points out that under the provisions of 5

46-18-302, MCA, the sentencing court may consider "any matter

relevant to the sentence whether or not admissible under

criminal rules." The dissent suggests that this giving of

broad discretion allows consideration of additional aggravat-

ing factors which have no direct bearing on the criminal

responsibility of the defendant. As previously quoted, S

46-18-302, MCA, does allow consideration of other matters by

the sentencing court. We further note that under that sec-

tion, the sentencing court is allowed to consider evidence

admitted at the trial relating to both aggravating and

mitigating circumstances without any reintroduction of that

evidence. We also note that the sentencing court is required

to make specific written findings of fact. Section

46-18-306, MCA. Further, it is appropriate that the sentenc-

ing court consider all evidence relevant to sentencing. This

Court has previously concluded that the consideration of

aggravating factors other than those statutorily enumerated

was appropriate. In McKenzie v. Osborne (1982), 195 Mont.

26, 640 P.2d 368, defendant attacked the sentence on the

ground that the court had relied on aggravating factors other

than those found in our statutes. This Court stated that the

factors "properly relate to the propriety of the sentence of

death." McKenzie, 640 P.2d at 382.

The requirement that the sentencing court make these

findings is significant when considering the issue raised by

the dissent in regard to the jury verdict which found defen-

dant guilty under the felony murder rule, and certain find-

ings by the sentencing court indicating that defendant killed

the victim. The dissent suggests the court's findings and

the verdict are inconsistent and that the sentencing court

became the fact-finder. We emphasize however, that these

findings by the sentencing court were not improper.

In Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct.

3368, 73 L.Ed.2d 1140, the court held that the death penalty

may be imposed if defendant killed, attempted to kill, or

intended to kill or that lethal force be used. This deter-

mination as to defendant's culpability need not be made by a

jury, but may be made at any point in the state criminal

process. Cabana v. Bullock (1986), 474 U.S. 376, 106 S.Ct.

689, 88 I,.Ed.2d 704, overruled in part on other grounds;

Pope v. Illinois (1987), 481 U.S. 497, 504, 107 S.Ct. 1918,

1922, 95 L.Ed.2d 439, 447. See also Tison v. Arizona (1987),

481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127.

Applying the rule of Enmund and Cabana, the sentencing

court made the determination that defendant killed the vic-

tim. We conclude that the findings and conclusions by the

sentencing court are properly within the provisions of the

statutes and that there is no contradiction present casting

doubt on the validity of the death penalty. Under our statu-

tory provisions, the sentencing judge is clearly given the

responsibility and power to make this determination.

Our statutes now give adequate standards and guidelines

to be applied by the sentencing court, yet allow for and

encourage individualized sentencing. In Montana, sentence is

imposed by the district court judge, whose background and

experience is in comparing aggravating and mitigating

factors.

We conclude that in Montana the death penalty is accept-

able to contemporary society, is not excessive for the crimes

for which it may be imposed, and that our statutes guiding

the sentencing process and our provisions for sentence review

do not allow the prohibited arbitrary conduct on the part of

the sentencing court.

We hold that the death penalty here does not constitute

cruel and unusual punishment prohibited by the United States

and Montana Constitutions.

Having reviewed the entire record in this case in af-

firming the determinations by the judge of the District

Court, and in consideration of the Enmund and Cabana rules,

this Court also independently finds and concludes that defen-

dant killed Martin Etchemendy, Jr. We also find and conclude

that two statutory aggravating circumstances were present in

that the offense was deliberate homicide committed by means

of torture and that the offense was aggravated kidnapping

which resulted in the death of the victim. We therefore

affirm both the convictions and the sentences.

X

This Court has reviewed the entire record and applicable

law and hereby affirms the sentences of death imposed by the

District Court. This case is remanded to the District Court

which shall set a date for execution in accordance with the

statutes.

Affirmed .

Fle Concur: ,,/

Justices

Mr. Justice John Conway Harrison specially concurring.

I concur with the majority. I note with considerable interest

the dissent of Mr. Justice Sheehy, and while I cannot concur in his

dissent, I feel the time has come to note the frustrations of State

Appellate Justices in capital cases. Like Justice Sheehy, I have

authored three of some twelve cases that have been before this

Court in the past twenty-nine years. In addition, I have read the

briefs and voluminous transcripts of every case in which I upheld

the death sentence. It was not a pleasant task to say the least,

however, it comes with this office.

I find myself disagreeing with some of Mr. Justice Sheehy's

dissent and, in taking issue with his statements, I do not question

either his integrity or his right to change his mind. First he

notes that whether the death penalty is acceptable to contemporary

Montana society is arguable. As he notes the last time it was

submitted to the people of this State it was overwhelmingly

approved. Yet as he says the last death penalty sentence that was

carried out in this State was in 1944. What he fails to note is

that in the past thirty years the United States Supreme Court has

twice found State laws providing for the death sentence

unconstitutional. This necessitated twenty-one States passing new

laws in order to comply with the United States Supreme Court's

opinions. Montana is one of those States. After each of the

United States Supreme Court's opinions, a thousand or more persons

sentenced to death had their sentences changed to life sentences

and many of these people have since been paroled or have served the

maximum time and returned to the various communities of this

country. I find the fact that the States have redone their laws

twice in this period indicative of strong support for the death

sentence in those states.

Likewise I disagree with his premise that the Montana

experience since 1977, when the legislature put the sentencing in

the hands of the trial judge, rather than the jury, cannot be said

to represent the wide spectrum of public sentiment on social issues

called for by the Supreme Court in Gregg v. Georgia (1976), 428

U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, reh. den. 429 U.S. 875,

97 S.Ct. 197, 50 L.Ed.2d 158, (1976). Rather, I find that trial

judges, like appellate judges, take great care and caution before

ever sentencing a person to death. I believe this protection for

a defendant prevents runaway jury passions.

It is not the various State trial judges or justices of

appellate courts who have delayed the carrying out of their laws

on capital punishment. That obvious honor belongs in the Federal

system. The worst example in this State is that of Duncan McKenzie

who was convicted in 1975, and who has now spent some fourteen

years on death row. There was a time in our history when people

worried about the execution of Caryl Chessman, a murderer in

~alifornia, who spent some seven years on californials death row.

Chessman v. Teets (1957), 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d

1253. He was just a newcomer to death row compared to McKenzie,

whose case has been like a yo-yo ever since it left this Court and

went into the Federal system. It has been said of McKenziels case

that he has a death sentence but "he will carry it out by dying of

old age. l1

There is no more difficult work, nor emotional task than that

given jurors, trial judges and appellate justices in finding a

human being guilty of murder, and sentencing, upholding or

approving of a death sentence. In each of the cases heard and

approved by this Court we have had twelve jurors find the defendant

guilty, a trial judge both approve of their findings and give the

sentence, followed by seven appellate justices carefully reading

the record and finding that the defendant had a fair trial and was

properly sentenced. Throughout the trial and appellate

proceedings, competent trial lawyers plus judges and justices, many

of whom have tried and defended capital cases in their practice,

have been given the duty of administering justice. However, once

it leaves the State jurisdiction and goes into the Federal system

often times, due to the multiple cases before both the Circuit

Courts and the Supreme Court, law clerks review the work of the

State jurisdiction. While the United States Supreme Court can ask

for transcripts of the cases I am informed that often they do not

have them as did the State Supreme Courts in their review of the

cases. As a result we have over 2,000 prisoners on death row in

the various States having capital punishment statutes. The law

should have some finality but as witnessed above in the McKenzie

case, there seems to be none. Only the United States Supreme Court

can provide the answer and that answer is long overdue.

Justice William E. Hunt, Sr. specially concurs:

I concur with the result reached by the majority

opinion, but do not agree with all that is said in that

opinion. /'

Justice John C. Sheehy, dissenting:

For a long time I have had the moral conviction that

exacting the penalty of death in criminal cases was

improper. I have come to the legal conviction that the

death penalty is indeed cruel and unusual punishment and so

prohibited by the Eighth Amendment to the United States

Constitution. The Cruel and Unusual Punishment Clause is

applicable to the states through the Due Process Clause of

the Fourteenth Amendment. Robinson v. California (1962),

370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.

This case comes to us on a direct appeal and also under

the automatic review of death penalty sentences pursuant to

5 46-18-307, MCA. Whether on appeal or under automatic

review, this Court is required under 46-18-310, MCA, to

determine whether or not the death sentence was properly

imposed by the District Court. The automatic review

provision was adopted by the legislature in 1977, as an

obvious response to Furman v. ~eorgia (1972), 408 U.S. 238,

92 S.Ct. 2726, 33 L.Ed.2d 346. The history of the action by

the states following Furman is set out in Pulley v. Harris

(1984), 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29. There

the Supreme Court stated:

Harris's submission is rooted in Furman v. Georgia, 408 U.S. 238 (1972). In Furman, the court concluded that capital punishment, as then administered under the statutes vesting unguided sentencing discretion in juries and trial judges, had become unconstitutionally cruel and unusual punishment. The death penalty was being imposed so discriminatorily (408 U.S. at 240) (Douglas, J. concurring) so wantonly and freakishly, id. at 306, (Stewart, J. concurring) , and SO infrequently, id. at 370 (White, J. concurring),

that any given death sentence was cruel and unusual. In response to that decision, roughly two-thirds of the States promptly redrafted their capital sentencing statutes in an effort to limit jury discretion and avoid arbitrary and inconsistent results. All of the new statutes provide for automatic appeal of death sentences. Most, such as Georgia's, require the reviewing court, to some extent at least, to determine whether, considering both the crime and the defendant, the sentence is disproportionate to that imposed in similar cases. Not every State has adopted such a procedure. In some States, such as Florida, the appellate court performs proportionality review despite the absence of the statutory requirement; in others, such as California and Texas, it does not.

Pulley, 465 U.S. at 44.

The appeal here and the automatic review provisions

bring to this Court once again yet another death penalty

case and brings me face to face with the ultimate question,

is the imposition of the death as prescribed by Montana

statutes in capital cases cruel and unusual punishment and

so forbidden by the United States Constitution? Indeed,

does the imposition of the death penalty also offend our

state constitution which likewise prohibits cruel and

unusual punishment (Art. 11, § 22, 1972 Mont. Const.)? I

have firmly concluded that it does offend the federal and

state constitutions to impose a death penalty and in that

conclusion I align myself with the position taken by Mr.

Justice William Brennan in Furman v. Georgia, supra. There,

Justice Brennan discussed in full terms the background of

the death penalty history, the reasons given for it and the

reasons against it, and concluded finally that the death

penalty was unconstitutional.

Justice Brennan based his conclusion upon four

principles: (1) the punishment must not be so severe as to

be degrading to the dignity of human beings; (2) the

imposition of the sentence must not be arbitrary; (3) the

severe punishment must not be unacceptable to contemporary

society; and, (4) the severe punishment must not be

excessive.

Whether the death penalty is acceptable to contemporary

Montana society is arguable. When the state constitution

was submitted to the voters in 1972, they were given a

chance to vote on the acceptability of the death penalty.

It was widely endorsed. Yet, the last death penalty imposed

and carried out in Montana before the adoption of the 1972

Montana Constitution was in 1944. For at least 30 years,

until the adoption of the provisions of automatic review,

the death penalty had not been imposed in the state. Until

1966, the determination of whether the death penalty should

be imposed was given first to the discretion of the jury,

and, if the jury left the punishment to the court, then to

the presiding judge. Section 94-2505, R.C.M. (1947). Thus,

while the voters in 1972 as an abstract proposition accepted

the death penalty, juries and after them the district

judges, when faced with real cases, did not impose the death

penalty. We frequently state in support of the jury system,

that because of their very number, a jury represents the

sense of community values in deciding cases. The U.S.

Supreme Court once said that jury reluctance in death cases

possibly reflected Inthe humane feeling that this most

irrevocable sanction should be reserved for a small number

of extreme cases. Gregg v. Georgia (1976), 428 U.S. 153,

182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859. The Montana

experience since 1977 indicates that judges are far more

likely than juries to impose the death sentence. A district

judge acting singly cannot be said to represent the wide

spectrum of public sentiment on social issues.

Moreover, at the time of the state vote on the death

penalty in 1972, the only mode of execution allowed by our

law was hanging by the neck until dead. In 1983, (Ch. 411,

Laws of Montana (1983)) the legislature amended the law of 5

46-19-103, MCA, to permit the defendant to choose death by

lethal injection of an 81ultra-fast-acting1r barbiturate

instead of hanging. In itself, this amendment is an

admission by the legislature that death by hanging is too

horrible to contemplate. Whether death by lethal injection

of a drug is less horrible, we do not know. None has

experienced it yet in Montana as punishment for a crime. We

have no reports from other states on the subject, largely

because of "that undiscovered country from whose bourne no

traveler returns to tell us of the way." What the change

from hanging to lethal injection does tell us is that

Montanans are seeking an easier way to end human life for

crime. In truth, there is no easy way.

Another of Justice Brennanls tests as to whether

punishment is cruel and unusual is whether it is imposed

arbitrarily. As I explain below, in this case the death

penalty was imposed arbitrarily, and the present statutes

adopted by Montana allow such arbitrary treatment.

It was not easy for me to conclude on constitutional

grounds that the death penalty was improper, even though I

oppose it on moral grounds. When first I came to this

Court, I was imbued with the responsibility of judges to

uphold the constitution and thus subordinated my moral

feelings to my thought that I should put those aside and

decide this type of case solely on what I perceived to be

legal grounds. In fact, I authored two opinions affirming

death penalties. State v. Coleman (1979), 185 Mont. 299,

605 P.2d 1000; State v. Fitzpatrick (1980), 186 Mont. 187,

606 P.2d 1343. All through the 1980s, these cases have been

grinding their way through the federal system and most

recently, each has been reversed and remanded. Execution by

death of several other defendants in Montana are on hold

because of further proceedings, including the oldest case,

where, even though the death penalty was affirmed in 1976,

no execution date is now set as far as I know. State v.

McKenzie (1976), 171 Mont. 278, 557 P.2d 1023. Thus, even

though the death penalty has been on the books at all times

no person has been executed in Montana in the last 45 years

as punishment for crime. There has been no more than slight

public reaction. That, too, tells us something about

community standards and values.

11.

As is stated above, the Montana statutes permit the

imposition of the death penalty arbitrarily. In this case,

the court in fact acted arbitrarily in finding factors for

the imposition of death.

It is provided in 5 46-18-305, MCA, that the District

Court in determining whether to impose a sentence of death

or imprisonment "shall take into account the aggravating and

mitigating circumstances enumerated in 5 46-18-303, MCA, and

5 46-18-304, MCA, and shall impose a sentence of death if it finds one or more of the assravating circumstances and finds there are no mitisatinq circumstances sufficiently

substantial to call for leniency." There are nine

aggravating circumstances listed in 5 46-18-303, MCA, and

eight mitigating circumstances listed in 5 46-18-304, MCA.

When read in conjunction with 5 46-18-305, MCA, a proper

interpretation would be that the District Court is limited

in determining aggravating factors to 5 46-18-303, and in

determining mitigating circumstances, to 5 46-18-304.

Opposed to the concept that the court is limited under

5 46-18-305 to the statutory aggravating circumstances and

mitigating circumstances is the language of 5 46-18-302.

That section provides that the District Court in sentencing

may consider any matter relevant to the sentence whether or

not admissible under criminal trial rules and the District

Court is given broad discretion as to whether it may

consider such evidence as probative. Thus, the door is wide

open in the sentencing procedure for the District Court to

consider not only the aggravating circumstances listed in 5

46-18-303 but additional factors which would have no direct

bearing on the criminal responsibility of the defendant.

This case illustrates arbitrary findings by the

District Court of circumstances other than those listed in 5

46-18-303. Of the statutory aggravating circumstances, the

only one picked up by the court and used to justify the

death sentence is that the offense was deliberate homicide

and was committed by means of torture. The only mitigating

circumstance found by the court was the defendant had no

significant history of prior criminal activity. If 5 46-

18-305 is read properly, these are the only aggravating and

mitigating circumstances which the court should have

considered in sentencing the defendant. However, the

District Court chose, apparently under the broad language of

9 46-18-302 to add a number of aggravating factors, not

statutory factors, including the following: that the

defendant knew the victim was married and had a family (par. 13) (this is disputed by the defendant); that the defendant

had no real employment history, and never held a job for any

appreciable length of time, and at the age of 26 years had

children by three different women, none of whom he supported

(par. 19); and that the victim's family had been deprived of

a son, husband or brother and that the parents of the victim

are now undergoing psychiatric counseling because of their

son's death (par. 20) None of these is listed as a

statutory aggravating circumstance and only the District

Court judge knows what influence these additional factors

had in bringing about the sentence of death.

Thus, the Montana statutes on the subject permit

arbitrary action by the District Court of the highest

degree, since the result can be so drastic and irreversible.

Now, it is true that in Lockett v. Ohio (1976), 438

U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, the United States

Supreme Court held that because the death penalty is so

profoundly different from all other penalties,

individualized decision-making is essential in capital

cases. To that end, the Supreme Court endorsed in Lockett

that at the sentencing hearing, evidence outside the trial

record relating to the defendant's character or the

circumstances of the offense, but only as mitiqatins factors

could be considered. The Court said:

We are now faced with those questions and we conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest capital case, not be precluded from considering, as a mitisatins factor any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death . . . (Emphasis in original.)

Lockett, 438 U.S. at 604.

Thus, the provisions of 46-18-302, MCA, which open

the door to extraneous evidence having to do with the

sentence has judicial blessing only as to mitigating

factors. The use of extraneous evidence to find aggravating

factors, over and above those statutorily provided or

implicit in the crime itself, have no such blessing. One of

the important reasons is that if such aggravating factors

are to be considered in connection with the fixing of death

as punishment, the defendant ought to be entitled to a trial

by jury as to those factors, and that brings me to a further

problem with respect to the Montana statutes.

In Adamson v. Ricketts (9th Cir. 1988), 865 F.2d 1011,

the Circuit Court had before it a habeas action against the

Arizona director of the Department of Corrections. The

Federal District Court held, among other things, that

Arizona's statutory scheme for the imposition of the death

penalty unconstitutionally limited the court's consideration

of mitigating circumstances and allowed an arbitrary

imposition of the death penalty.

The Circuit Court held that the Arizona statutes (which

are much like Montana's) permitted elements of the offense

to be determined by the sentencing judge, which deprived the

defendant of the right to trial by jury as to all of the

elements of the crime and thus violated the Sixth and

Fourteenth Amendments. The Circuit Court also determined

that the examination of death sentencing statutes required

heightened scrutiny. It further held that there must be a

strict separation between the determination of guilt and

innocence (fact-finding) and the determination of an

appropriate punishment (sentencing). The Adamson case is

now on appeal to the United States Supreme Court.

In the case we are now considering, the District Court

engaged in extensive fact-finding relating to the

defendant's guilt or innocence in imposing the death

sentence. It found that the offense was deliberate homicide

and was committed by means of torture; it found extraneous

circumstances as are noted above. The greatest problem,

however, is that the District Court in effect found that the

defendant had committed the crime directly, although my

interpretation of the charges against Lester Kills On Top

and the verdicts found against him relate to accountability

under the felony-murder rule. The District Court claimed

that he was not convicted under the felony-murder rule.

The majority had accepted the finding of the District

Court that defendant committed the crime directly, and

beyond that, the majority now declare also, after a review

of the record, that the defendant did kill Mart'n

Etchemendy, Jr. The jury found otherwise when it returned a

verdict of not guilty on the deliberate homicide charge. in so acting, the majority have misinterpreted Enmund v.

Florida (1982), 458 U.S. 782, and Cabana v. Bullock (1986),

474 U.S. 497. Nothing in those cases gives a sentencing

court, or an appellate court, the right to reverse a ju y F verdict to achieve a hanging or a lethal injection of the ,

defendant. (See Cabana, 474 U.S. at 386, fn. 5).

Attached to this dissent as an exhibit are the five

counts of the amended information under which the defendant

was charged, and the jury verdict with respect to each

count. It will be seen that the defendant was found suiltv

under Count I of robbery in the course of committing, or

aiding and abetting in the commission of, a theft from the

victim while inflicting, or aiding and abetting bodily

injury upon the victim. He was found not quiltv under Count I1 of aggravated kidnapping for the purpose of facilitating

the commission of the crime of robbery. He was found suiltv

in Count I11 of aggravated kidnapping with the purpose of

inflicting bodily injury or terrorizing the victim. He was

found not suiltv under Count IV of deliberate homicide. He

was found guilty under Count V of deliberate homicide in

that he was engaged in the commission of or legally

accountable for the commission of aggravated kidnapping,

resulting in the death of the victim which was caused by the

defendant or another person legally accountable for the

crime of aggravated kidnapping.

It is clear to me that if the defendant here was not

found guilty under the felony-murder rule on the basis of

accountability, then the verdicts are inconsistent because

the jury did not find him guilty of direct deliberate

homicide or direct aggravated kidnapping. In fact, even his

robbery conviction seems to be on the basis of

accountability.

The whole tenure of the District Court's findings with respect to the sentence of death is that the defendant

committed the acts directly. No mention is made in the

findings either of the felony-murder convictions or of

accountability. Thus, the District Court has either ignored

the jury verdict, and improperly sentenced the defendant for

directly committing crimes for which he has not been

convicted by the jury or the District Court has become the

sole fact-finder in spite of the jury's verdict. In either

event, the defendant has been deprived of his right to a

jury trial.

Fifteen states do not provide a death penalty in

capital cases. Of the 35 states that do so provide, only

four allow the judge, and not the jury, to determine the

aggravating factors and mitigating circumstances for the

imposition of the death penalty. Here, the District Court

found that the defendant had committed deliberate homicide

and caused the death of the victim by torture. While it may

be a question of semantics, it is nonetheless true that no

jury determined that the victim died by torture. The jury

did determine that his death was caused by the infliction of

bodily injury and by terror.

Since the death penalty hinges in Montana on the

statutory aggravating circumstances of 5 46-18-303, MCA,

those aggravating circumstances are an element of the crime,

and the defendant is entitled to a jury trial as to those

elements. In Montana, the right to a jury trial is by our

Constitution, secured to all and shall "remain inviolate.I1

Art. 11, 8 26, 1972 Mont. Const. The Sixth Amendment to the

United States Constitution guarantees an impartial jury

trial in criminal prosecutions. Montana statutes deprive a

defendant in a capital case of a jury trial on the most

critical elements that relate to his sentence.

In this case, therefore, I would uphold the conviction

of the defendant for robbery, aggravated kidnapping, and

deliberate homicide. I would remand the cause to the

District Court for resentencing of the defendant but forbid

the death penalty.

EXHIBIT TO THE DISSENT JUSTICE JOHN C. SHEEHY

The following are the charges against the defendant

Lester Kills On Top, with the jury result as to each count:

AMENDED INFORMATION

COUNT I

The Defendant, LESTER KILLS ON TOP, committed the offense of Robbery, a felony, as defined in 845-5-401(1) (a) and 845-2-302 ( 3 ) , MCA in that on or about October 17, 1987, in Custer County, Montana and Campbell County, Wyoming, LESTER KILLS ON TOP did, in the course of committing or aiding and abetting in the commission of a theft from JOHN MARTIN ETCHEMENDY, JR., inflict, or aided and abetted in inflicting, bodily injury upon JOHN MARTIN ETCHEMENDY, JR. , contrary to the f o m , force and effect of the statutes in such cases made and provided, and against the peace and dignity of the State of Montana.

JURY VERDICT: Guilty

COUNT I1

The Defendant LESTER KILLS ON TOP, committed the offense of Aggravated Kidnapping, a felony, as defined in 545-5-303 (1) (b) and 545-2-302 (3), MCA, in that on or about October 17, 1987, in Custer County, Montana and Campbell County, Wyoming, LESTER KILLS ON TOP did purposely or knowingly and without lawful authority restrain or aid and abet in restraining JOHN MARTIN ETCHEMENDY, JR. by holding or aiding and abetting in holding him in a place of isolation, or by using or aiding and abetting in the use of physical force against JOHN MARTIN ETCHEMENDY, JR. with the purpose of facilitating the commission of the crime of Robbery, a felony, or the flight thereafter, contrary to the form, force and effect of the statutes in such case made and provided, and against the peace and dignity of the State of Montana.

JURY VERDICT: Not guilty

COUNT I11

(Alternative Count to Count 11)

The Defendant, LESTER KILLS ON TOP, committed the offense of Aggravated Kidnapping, a felony, as defined in 5 45-5-303 (1) (c) and 945-2-302 (3), MCA, in that on or about October 17, 1987, in Custer County, Montana and Campbell County, Wyoming, LESTER KILLS ON TOP did purposely or knowingly and without lawful authority restrain or aid and abet in restraining JOHN MARTIN ETCHEMENDY, JR. by holding or aiding and abetting in holding him in a place of isolation or by using or aiding and abetting in the use of physical force against JOHN MARTIN ETCHEMENDY, JR. with the purpose of inflicting bodily injury on or terrorizing JOHN MARTIN ETCHEMENDY, JR., contrary to the form, force and effect of the statutes in such case made and provided, and against the peace and dignity of the State of Montana.

JURY VERDICT: Guilty

COUNT IV

The Defendant, LESTER KILLS ON TOP, committed the offense of Deliberate Homicide, a felony, as defined in 545-5-102(1) (b), MCA, in that on or about October 17, 1987, in Custer County, Montana and Campbell County, Wyoming, while LESTER KILLS ON TOP was purposely or knowingly engaged in the commission of or legally accountable for the commission of Robbery, or flight after the commission of the crime of Robbery, a felony, which involved the use of physical force and violence against JOHN ETCHEMENDY, JR., the death of JOHN MARTIN ETCHEMENDY, JR. was caused by LESTER KILLS ON TOP or another person legally accountable for the crime of Robbery, contrary to the form, force and effect of the statutes in such case made and provided, and against the peace and dignity of the State of Montana.

JURY VERDICT: Not Guilty

COUNT V

(~lternative County to Count IV)

The Defendant, LESTER KILLS ON TOP, committed the offense of Deliberate Homicide, a felony, as defined in 5 45-5-102 (1) (b) , MCA, in that on or about October 17, 1987, in Custer County, Montana and Campbell County, Wyoming, while LESTER KILLS ON TOP was purposely or knowingly engaged in the commission of or legally accountable for the commission of Aggravated Kidnapping, or flight after the commission of the crime of Aggravated Kidnapping, or flight after the commission of the crime of Aggravated Kidnapping, a felony, which involved the use of physical force and violence against JOHN MARTIN ETCHEMENDY, JR. , the death of JOHN MARTIN ETCHEMENDY, JR. was caused by LESTER KILLS ON TOP or another person legally accountable for the crime of Aggravated Kidnapping contrary to the form, force and effect of the statutes in such case made and provided, and against the peace and dignity of the State of Montana.

JURY VERDICT: Guilty